COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION FIREARMS, EXTREME RISK, AND LEGAL DESIGN: “RED FLAG” LAWS AND DUE PROCESS Joseph Blocher* & Jacob D. Charles** Extreme risk protection order (“ERPO”) laws—often called “red flag” laws—permit the denial of firearms to individuals who a judge has determined present an imminent risk of harm to themselves or others. Following a wave of adoptions in the wake of the Parkland murders, such orders are now authorized by law in nineteen states and the District of Columbia and under consideration in many others. Advocates argue that they provide a tailored, individualized way to deter homicide, suicide, and even mass shootings by providing a tool for law enforcement or others to intervene when harm appears imminent, without having to wait for injury, lethality, or criminal actions to occur. But the laws have also garnered criticism and have become a primary target of the Second Amendment sanctuary movement. As a matter of constitutional law, the most serious questions about ERPO laws involve not the right to keep and bear arms but due process. Such orders—like domestic violence restraining orders, to which they are often compared—can initially be issued ex parte, and critics often allege that this feature (and others including the burden of proof) raises constitutional problems. This Article provides a comprehensive analysis of the applicable due process standards and identifies the primary issues of concern. It concludes that, despite some variation, current ERPOs generally satisfy the relevant standards. It also notes those features that are likely to give rise to the strongest challenges. The analysis both builds on and * Lanty L. Smith ’67 Professor of Law, Duke University School of Law. ** Lecturing Fellow & Executive Director, Center for Firearms Law, Duke University School of Law. Many thanks to Saul Cornell, Dave Kopel, Anne Levinson, Darrell Miller, Kelly Roskam, Eric Ruben, Jeff Swanson, Fredrick Vars, Julia Weber, Shawn Fields, and Tim Zick for invaluable comments and feedback, as well as to the participants at the University of Alabama School of Law symposium, “Seeing Red: Risk-Based Gun Regulation.” 1285 COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 1286 Virginia Law Review [Vol. 106:1285 suggests lessons for other areas of regulation where laws are designed so as to lessen extreme risk. INTRODUCTION ............................................................................ 1286 I. EXTREME RISK LAWS: REFRAMING GUN REGULATION ............ 1292 A. The Spread of Extreme Risk Laws .................................. 1293 B. A New Paradigm for Gun Regulation? ........................... 1304 1. Retail Gun Regulation .............................................. 1305 2. Beyond “Law-Abiding, Responsible Citizens”: Risk- Based Gun Regulation ............................................ 1313 II. DUE PROCESS AND EXTREME RISK LAWS ............................... 1318 A. Constitutional Requirements for Pre-Hearing Deprivations ................................................................. 1319 1. Supreme Court Guidelines for Seizures Prior to a Full Hearing ................................................................... 1321 2. Extreme Risk Laws’ Ex Parte Procedures Fit Comfortably in the Due Process Framework ......... 1331 B. The Standard of Proof .................................................... 1336 1. Principles for Establishing the Burden of Proof ...... 1337 2. The Burden of Proof in the Extreme Risk Context .... 1340 CONCLUSION ............................................................................... 1343 INTRODUCTION What process is due when people who pose an extreme risk of harm to themselves or others are temporarily deprived of a constitutional right? What design choices can legislators make to ensure that such deprivations provide constitutionally adequate protections? Although such questions have arisen in many different contexts, including domestic violence restraining orders and civil commitments, they are now front and center for what is arguably the most important current development in firearms regulation: the spread of “extreme risk” or “red flag” laws that permit courts to order that firearms be temporarily removed from individuals who pose an imminent risk of harm to themselves or others. Advocates see these laws as an effective, targeted way to save lives while respecting the Second Amendment.1 Critics allege that they amount to “pre-crime” punishment and that they violate not only 1 See infra Section I.A. COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 2020] Firearms, Extreme Risk, and Legal Design 1287 the right to keep and bear arms but also the due process guarantee.2 In fact, opposition to extreme risk laws has helped fuel the “Second Amendment sanctuary” movement, by which some local governments have pledged their refusal to enforce state and federal gun laws.3 Behind the political claims lies an enormously important and difficult set of questions regarding the ways in which the law can be constitutionally designed to account for risky-but-not-criminal behavior. Judges and scholars have long recognized that laws regulating on the basis of future risk raise a different and in many ways harder set of questions than those that, for example, punish prior behavior.4 On the one hand, the law often restricts behavior on the basis of predictions. Even basic cost- benefit analysis—which is foundational to the regulatory state5—is largely forward-looking. Regulation of risk, in short, is nothing new.6 But when such regulation intersects with constitutional rights and interests in the absence of a criminal conviction or its equivalent, harder questions arise about the necessary procedures and evidentiary burdens. Intuitively, restraining a person who has harmed others is different from restraining someone who is only at risk of doing so. There is no bright line: civil commitments, restraining orders, and the like all impose 2 See infra note 159 and accompanying text (“pre-crime” comparison); infra notes 81–88 and accompanying text (Second Amendment critique); infra notes 29–30 (due process critique). 3 Noah Shepardson, America’s Second Amendment Sanctuary Movement Is Alive and Well, Reason (Nov. 21, 2019, 4:00 PM), https://reason.com/2019/11/21/americas- second-amendment-sanctuary-movement-is-alive-and-well/ [https://perma.cc/XKV7-ADF4]; see also Scott Pelley, A Look at Red Flag Laws and the Battle Over One in Colorado, 60 Minutes, CBS News (Nov. 17, 2019), https://www.cbsnews.com/news/red-flag-gun-laws-a- standoff-in-colorado-60-minutes-2019-11-17/ [https://perma.cc/GF5D-BSH2] (examining Second Amendment sanctuaries in Colorado). 4 Both categories, of course, may well be based on prior behavior—in the former set, that behavior is evidence of future risk; in the latter, it is the basis for retribution or some other governmental interest. 5 See Richard L. Revesz & Michael A. Livermore, Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health 9–10 (2008) (noting that the use of cost-benefit analysis has been a contentious issue in regulatory policy making for decades); Cass R. Sunstein, The Cost-Benefit Revolution 3–4, 6–7 (2018) (describing how successive Presidents since Ronald Reagan have required that regulations promulgated during their administrations be justified on a cost-benefit basis). 6 Nor, for that matter, is the notion that regulation often involves trading off one risk against another: denying a firearm to a particular person might lower the risk that he will misuse it, while raising the risk that he will be unable to defend himself in a time of need. For an influential analysis of the tradeoff question, see Risk Versus Risk: Tradeoffs in Protecting Health and the Environment 3–5 (John D. Graham & Jonathan Baert Wiener eds., 1995). COPYRIGHT © 2020 VIRGINIA LAW REVIEW ASSOCIATION 1288 Virginia Law Review [Vol. 106:1285 significant restraints in an effort to prevent future harms and are not categorically unconstitutional. Scholars have explored those related contexts7 but have only recently devoted attention to these questions in the context of extreme risk laws,8 and this Article is the first to provide an in-depth examination of the due process issues they raise. (These are often called “red flag” laws, though that label might convey a stigma, so we will use the increasingly common “extreme risk” label.9) In the past two years alone, a dozen states have adopted or expanded such laws. Although the details vary, their form is similar: law 7 For a sampling of the literature regarding involuntary commitments for mental illness, see David L. Bazelon, Institutionalization, Deinstitutionalization and the Adversary Process, 75 Colum. L. Rev. 897, 899–900 (1975) (asking “[i]s confinement on the basis of ‘dangerousness’ alone constitutional?” and providing a skeptical answer); Veronica J. Manahan, When Our System of Involuntary Civil Commitment Fails Individuals with Mental Illness: Russell Weston and the Case for Effective Monitoring and Medication Delivery Mechanisms, 28 Law & Psych. Rev. 1, 32 (2004) (“Civil liberty concerns, as evidenced by the extensive due process protections afforded to those facing involuntary commitment, and the state’s interest in protecting all of its citizens, are fundamentally at odds.”); Alexander Tsesis, Due Process in Civil Commitments, 68 Wash. & Lee L. Rev. 253, 300–01 (2011) (arguing that civil commitment should require a beyond-a-reasonable-doubt standard of